DEPARTMENT OF DEFENSE DEFENSE CONTRACT MANAGEMENT AGENCY ORLANDO, FLORIDA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3953

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.
20424-0001

DEPARTMENT OF DEFENSE

DEFENSE CONTRACT MANAGEMENT
AGENCY

ORLANDO, FLORIDA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3953

Charging
Party

Case No. AT-CA-00310

NOTICE OF TRANSMITTAL OF
DECISION

The above-entitled case having been
heard before the undersigned Administrative Law Judge pursuant to
the Statute and the Rules and Regulations of the Authority, the
under-signed herein serves his Decision, a copy of which is
attached hereto, on all parties to the proceeding on this date and
this case is hereby transferred to the Federal Labor Relations
Authority pursuant to 5 C.F.R. § 2423.34(b).

PLEASE BE ADVISED that the filing
of exceptions to the attached Decision is governed by 5 C.F.R. §§
2423.40-2423.41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and
2429.27.

Any such exceptions must be filed
on or before

MAY 21, 2001, and addressed to:

Federal Labor Relations
Authority

Office of Case Control

607 14th Street, NW, Suite
415

Washington, DC
20424-0001

________________________________

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: April 17, 2001

Washington, DC

UNITED
STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.
20424-0001

MEMORANDUM DATE: April 17,
2001

TO: The Federal Labor Relations
Authority

FROM: WILLIAM B. DEVANEY

Administrative Law Judge

SUBJECT: DEPARTMENT OF
DEFENSE

DEFENSE CONTRACT MANAGEMENT
AGENCY

ORLANDO, FLORIDA

Respondent

and Case No.
AT-CA-00310

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 3953

Charging Party

Pursuant to section 2423.34(b) of
the Rules and Regulations, 5 C.F.R. § 2423.34(b), I am hereby
transferring the above case to the Authority. Enclosed are copies
of my Decision, the service sheet, and the transmittal form sent to
the parties. Also enclosed are the transcript, exhibits and any
briefs filed by the parties.

Enclosures

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative
Law JudgesOALJ 01-31

WASHINGTON, D.C.

DEPARTMENT OF DEFENSE

DEFENSE CONTRACT MANAGEMENT
AGENCY

ORLANDO, FLORIDA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3953

Charging
Party

Case No. AT-CA-00310

David Norris, Esquire

Major Thomas J. Nied,
U.S.A.F.

For the Respondent

Mr. Michael Johnson

For the Charging
Party

Brent Hudspeth, Esquire

For the General
Counsel

Before: WILLIAM B.
DEVANEY

Administrative Law
Judge

DECISION

Statement of the Case

This proceeding, under the Federal
Service Labor-Management Relations Statute, Chapter 71 of Title 5
of the United States Code, 5 U.S.C. § 7101,etseq.361365564,
and the Rules and Regulations issued thereunder, 5 C.F.R. §
2423.1etseq., concerns
whether Respondent questioned Chief Steward Michael Johnson as to
why he questioned employee Tara Michelle Wagner about her possible
transfer and/or Mr. Johnson's two day suspension, ". . . for
contemptuous behavior and abusive or offensive language during . .
." his questioning by Respondent and/or whether Respondent made, ".
. . several threatening and intimidating statements to Johnson
regarding his role as a Chief Steward . . .", as alleged in Pars.
13b., 14, 15 and 16 of the Complaint, in violation of §§ 16(a)(1)
and (2) of the Statute.

This case was initiated by a charge
filed on February 4, 2000 (G.C. Exh. 1(a)) which alleged violations
of §§ 16(a)(1), (2) and (5) of the Statute and by an Amended
Charge, filed on July 14, 2000 (G.C. Exh. 1(c)) which alleged
violations of §§ 16(a)(1) and (2) of the Statute. The Complaint
and Notice of Hearing issued on July 31, 2000; alleged violations
of §§ 16(a)(1) and (2) of the Statute; and set the hearing for
October 27, 2000, pursuant to which a hearing was duly held on
October 27, 2000, in Orlando, Florida, before the undersigned. All
parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the
issues involved, and were afforded the opportunity to present oral
argument which Respondent exercised. At the conclusion of the
hearing, November 27, 2000, was fixed as the date for mailing
post-hearing briefs and General Counsel and Respondent each timely
mailed an excellent brief, received on, or before, December 5,
2000, which have been carefully considered. Upon the basis of the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings and conclusions:

FINDINGS

1. The American Federation of
Government Employees, Local 3953 (hereinafter, "Union") is the
exclusive representative of employees of the Defense Contract
Management Agency, Orlando, Florida (hereinafter,
"Respondent").

2. Mr. William Aman, herein
referred to by his nickname, "Rick" (Tr. 64), has been a Steward
for four or five years (Tr. 64), was Vice President in Melbourne
for two or three years and was President of the Union for the State
of Florida for about six months (Tr. 65). Mr. Aman explained the
organization of Respondent as follows:

Commander (Captain, U.S.N., Robert
L. Williams)

Deputy Commander (Joan
White)

TAG (Technical
Operations

Assistance
Group)

GS-14 (Terry Hodges) GS-14 (Tom
Straub)

EDW(Tr.
80, 90) TEAM GOOATEAM GOOB

LEAD
ADMINISTRATORSUPERVISORSUPERVISOR

(Tr. 80) BARBARA TURNER (NOT
NAMED)

ACOs(Administra-ACOs

tive Contracting

Officers TARA WAGNER

JANICE STEPHENSON (possibly
one

(Two
others- not other; not named)

named(Tr.
87, 91) (Tr. 87, 91)

CONTRACT CONTRACT

ADMINISTRATORSADMINISTRATORS

William Aman Bill Lucas
(Tr.

(others not named) 25) (others
not

named)

(Tr. 65, 66, 70)

3. Mr. Aman said he was on the
employee-implementation for EDW (he said he had forgotten what the
letters were, ". . . a symbol for" (Tr. 80)) which is, "Electronic
Data . . . Basically, it's for reviewing contracts online
electronically." (Tr. 80) Mr. Aman said that initially EDW was set
up with ". . . administrators [of whom he was one] in different
parts of the organization" (Tr. 80); but that, ". . . it became
pretty clear that we were going to need a focal point for the EDW .
. . it became clear that we were going to have to have a lead
administrator . . ." (Tr. 80). He said that they just were going
to put Ms. Tara Wagner in the position (Tr. 80), but other
employees, ". . . wanted a shot at the position" (Tr. 80) and Ms.
Wagner told Mr. Aman ". . . she wasn't sure she wanted to go over
there either." (Tr. 86) Accordingly, the position [EDW Lead
Administrator in TAG] was posted on the internet, by Terry Hodges,
to all employees in the building requesting volunteers and at least
Ms. Velma Haywood and Ms. Wagner bid for the position. (Tr. 81, 87)
Mr. Aman was evasive when asked about the posting. For example,
when asked,

"Q . . . Are you familiar with the
fact that Terry Hodges sent out an E-mail to the building including
yourself, requesting volunteers . . ." (Tr. 79)

Mr. Aman responded,

"A Well, I think the first thing
that happened -- see I was on the EDW -- employee-implementation
team. It first really started while we were doing EDW. On that
team and trying to implement it into the facility, it became pretty
clear that we were going to need a focal point for the EDW . . . ."
(Tr. 80)

Then he was asked,

"Q . . . Are you aware . . . that
this was a transfer that was requested of everybody in the
building, and nobody responded except Velma and Tara Wagner? Velma
Hayward and Tara Wagner. Is that true?

4. Sometime in November, 1999,
[The parties stipulated that, if called, Ms. Stephenson would
testify that the meeting in Ms. Turner's office was on November 30,
1999 (Jt. Exh. 1, p. 2)]. Ms. Barbara Turner, Mr. Aman's
supervisor (Team Leader), called him to her office and Ms. Janice
Stephenson, an Administrative Contracting Officer on his
team,i.e.GOOA,
was there (Tr. 65).735226467
Mr. Aman stated,

"A She [Turner] said she wanted to
basically get some advice as far as what she should probably be
doing. You know, was she doing the proper thing? Kind of asking
me what was supposed to take place because she was informing Janice
Stephenson and they had already been talking about it.

. . .

"A I told her [Turner] about the
requirement for -- I think the requirement in the agreement is to
notify the labor representative for the activity fifteen days in
advance of any actual reorganization or transfers." (Tr.
65-66)

The parties stipulated, in pertinent
part, as follows:

"The Parties stipulate that if
called to testify, Janice Stephenson would testify that on November
30, 1999, she expressed her concerns over a potential reassignment
to her supervisor, Barbara Turner. During this discussion, Turner
summoned Union Steward, William (Rick) Aman, so that they could
discuss Ms. Stephenson's rights in this regard." (Jt. Exh. 1, p.
2)

Mr. Aman stated that right after
the meeting, he and Ms. Stephenson had a further discussion at Ms.
Stephenson's cubicle at which time Ms. Stephenson told Mr. Aman
that Ms. Turner had told her that because she was the junior
Administrative Contracting Officer on the GOOA team she would have
to go over to GOOB to assume Ms. Wagner's work. (Tr. 67, 91)
Although Mr. Aman said that sending Ms. Stephenson because she was
the junior ACO on her team, ". . . would be incorrect actually.
That could be a negotiating position for the union, but that
wouldn't be for management to say. I don't think that's in the
agreement, but I think that's how the union usually does it." (Tr.
67), the record does not show whether this was, or was not,
discussed with Ms. Turner. Indeed, Mr. Aman's testimony shows that
he told Ms. Turner only that notice must be given to the Union
fifteen days in advance of any actual reorganization or transfer
(Tr. 66), the clear inference being that any "actual reorganization
or transfers" (Tr. 66) were in the future.

5. Mr. Aman did speak to Mr.
Johnson, either on November 30 or in the morning of December 1,
1999 (Tr. 21). Mr. Aman said,

"A . . . I talked to Mike about
it. Since he hadn't told me about it, I kind of figured that they
hadn't told him. That was not unusual because of several other
things they had not told him before. So I was ready when I talked
to him with several things he probably needed to do. I told him
how I felt about the whole situation of me being informed because I
serve at his bequest in our union. All my duties flow from his
authority and anything I do, he basically asks me to do.

"When management contacts or wants
to -- the way we're set up is that he is the lone elected official
for that Command and they are supposed to talk to him about
anything to do with labor relations, not me. They are not supposed
to come to me. So I told him about that. I told him some of the
things he needed to do such as, he needed to go talk to individuals
I knew that were effected (sic). He needed to talk to Janice
Stephenson. He needed to go talk to Tara. He needed to go ask
management why they hadn't informed him, and a couple other things.
I don't recall all the things, but we talked for a while about
it." (Tr. 69)

Mr. Johnson remembered the
conversation as follows:

"A I'm not sure if Rick Aman came
to me on the last day of November 1999, or on the morning of
December 1st.

. . .

"A He came over to my cubicle and
asked me to come over to see him, and he talked about his . . .
meeting with Janice Stephenson and Barb Turner, where Barb Turner
was telling Rick that, you know, she may be losing Janice
Stephenson to another team to fill in behind Tara Wagner, because
Tara Wagner supposedly was being transferred over to TAG, and he
asked me if I knew anything about it and I said I didn't know
anything about it. Then Rick said, 'The Union is supposed to be
notified of transfers and reassignments and reorganization and
ecetera, like that, and have they notified you, Mike? You're the
Union person here. You're the Chief Union Steward here. You
represent the bargaining units.' I said, 'Rick, I didn't know what
was going on, but I'll check into it for you.'" (Tr.
21).

6. While on her lunch break on
December 1, 1999, Ms. Tara Wagner was soliciting donations for
money to get gifts for "Foster Angels" (Tr. 136) ("Toys For Tots"
in Mr. Johnson's recollection (Tr. 22)), and when she reached Mr.
Johnson's cubicle he asked to speak to her. Ms. Wagner
testified,

"A He said that he was requested
on Joan White's behalf as the union head honcho to find out my real
reasons for moving and wanting to go to the Technical Assessment
Group." (Tr. 136)

On cross-examination, Ms. Wagner
said,

"A I told her [Ms. White] exactly
what he [Johnson] said. That Mike [Johnson] had stopped me and
said, 'Joan White asked me as union head honcho, for your real
reasons to move to TAG and to give her a recommendation back." (Tr.
151)

Mr. Johnson testified that he said
he,

"A . . . was Union honcho . . .
'I'm here to find out the facts because I am the Union
representative. I've been asked to check into a rumor that you
were being given favoritism and that the Union wasn't notified of
the transfers of personnel around here. In order for be to
understand what's going on because I didn't know, you know, what
the full circumstances were, that you explain what's going on here
about what I've heard today from someone else across the hall.'"
(Tr. 23)

. . .

"A . . . I told her that I would
go to Joan White and ask her first of all, why isn't the Command
here notifying the Union of transfers of people? You know, why are
we being kept in the dark? If I feel that there's no favoritism
here when we discuss impact and implementation, then I would
recommend to her what the Union thinks about, you know, the
situation, but I needed to find out the full facts on the issues."
(Tr. 24)

Mr. Johnson said that Ms. Wagner
told him that he, Johnson, had been at the team meeting, ". . .
where the team was attacking me [Wagner] and we didn't get along"
(Tr. 24) and she had gone to Major Stewart, her then supervisor,
and asked to be transferred to an open job in EDW; but, thereafter,
things settled down and she decided she did not want to leave GOOB,
so Mr. Hodges [TAG-EDW] had asked for volunteers for the EDW job;
that Ms. Wagner had not volunteered and she was asked why not, to
which she had responded that she wasn't sure she wanted to work
there but had suggested that she would be willing to work at EDW
part time and still do her regular ACO work at GOOB. (Tr. 24-26)
Mr. Johnson said he, ". . . didn't feel like there was any
favoritism and I figured well, it's not really an important issue
right now. I would take care of it later because I had left and
gone out to the company that afternoon to do my job." (Tr.
26)

Mr. Johnson said that when he got
back at the end of the day [December 1] there was a message to see
Ms. White; that he had gone to her office but she had left for the
day. The next day, December 2, he said he had a prearranged
meeting with another company and was out of the office most of the
morning. (Tr. 27) When he returned, he learned Ms. White had set
up a meeting for 1:00 p.m. and he went to her office for the
meeting. (Tr. 27)

7. Ms. Wagner said that
immediately after talking to Mr. Johnson she had gone upstairs for
lunch and that she, ". . . happened to relay the conversation . . .
it probably wasn't a matter of even five minutes from our
conclusion of the conversation [with Mr. Johnson] to my being up in
the break room, that I related the conversation to some people that
were up in the break room. . . . One of those individuals said,
'Well, wouldn't that he kind of strange that Joan White would go to
Mike Johnson to ask you?'." (Tr. 138-139)

Accordingly, after lunch, Ms.
Wagner went to Ms. White and asked Ms. White directly if she had
asked Mr. Johnson to question her, Wagner, on her (White's) behalf.
Ms. Wagner stated that Ms. White, ". . . said, no she did not ask
Mike, and at that point she asked if I had a problem with calling
Mike Johnson into the room and discussing the matter." (Tr.
139-140) Ms. Wagner told Ms. White she had no problem calling Mr.
Johnson in, ". . . however, Mike was not available at that time and
we concluded the conversation until the next day. [December 2]".
(Res. Exh. 1) Ms. Wagner said she had told Ms. White that Mr.
Johnson had said, "Joan White asked me as union head honcho, for
your real reasons to move to TAG and to give her a recommendation
back." (Tr. 151; Res. Exh. 1) Ms. White fully corroborated Ms.
Wagner's statements to her on December 1, 1999. (Tr. 124-126; Res.
Exh. 2, p. 1)

8. On December 2, 1999, Mr. Aman,
at lunchtime, went to the food court and Ms. Wagner was eating and
he picked up his food and went over to her table and had lunch.
Mr. Aman said that she told him she had set up a meeting and was
getting ready to go to a meeting with Joan White, ". . . that
afternoon after lunchto discuss-- I guess to verify --something she thought that Mike had said. . .and also to ask whether Joan
had asked Mike to go ask her questions. . .
." (Tr. 70-71) (Emphasis supplied). Mr. Aman said, ". . . Tara was
a little agitated and I guess, upset about it or otherwise she
wouldn't be talking to Joan." (Tr. 71)

Mr. Aman told Ms. Wagner that he
had talked to Barbara [Turner] and, ". . . that I had gotten
(sic) involved and
that I had asked Mike to go talk to several employees . . . I
explained to her that he [Johnson] has a responsibility to do this
and I didn't know anything about what Joan and Mike had discussed .
. . It was his job as the labor representative to go talk to the
employees about this. Whether or not Joan had asked me
(sic) to do
anything, really didn't matter because his authority didn't flow
from Joan. It flows from the statute -- from being a labor
representative. . . ." (Tr. 71)

Later, Mr. Aman sought to move the
date of his luncheon meeting with Ms. Wagner from December 2 to
December 1, ". . . It was the day before I was called into Joan's
office. I do know that. . . ." (Tr. 72) All other testimony and
evidence is to the contrary. Mr. Johnson placed his discussion
with Mr. Aman, at which Mr. Aman told him about the transfer of Ms.
Wagner, on the morning of December 1. (Tr. 22, 26) Mr. Johnson
said, ". . . After I talked to Rick Aman, then I went back to my
cubicle because I had a lot of work to do . . . Tara Wagner came by
. . . I said, 'By the way Tara, can I talk to you about something?
. . ." (Tr. 22) Although Mr. Johnson did not put a time on his
conversation with Ms. Wagner, he said that upon concluding their
conversation, ". . . I figured well, it's not really an important
issue right now. I would take care of it later because I had left
and gone out to the company that afternoon to do my job." (Tr. 26),
which directly implies that his conversation with Ms. Wagner ended
at about noon because he had left and gone out that afternoon. Ms.
Wagner testified credibly and without contradiction that it was at
lunch with fellow employees on December 1, 1999, that she related
Mr. Johnson's statement and one of them had raised the question
that it seemed strange that Deputy Director White would have asked
Mr. Johnson to question her, Wagner, on Ms. White's behalf. Ms.
Wagner did not go to Ms. White until after lunch on December 1,
1999; and Ms. Wagner's statement shows that, ". . . Mike was not
available at that time [December 1] and we concluded the
conversation until the next day." (Res. Exh. 1) Further, Mr.
Aman's testimony that Ms. Wagner, ". . . was getting ready to go to
a meeting with Joan White that afternoon after lunch . . ." (Tr.
70) is consistent with the fact that the meeting was set for 1:00
p.m., December 2. Accordingly, Mr. Aman could not have had the
luncheon discussion with Ms. Wagner until December 2. Mr. Aman had
it right the first time - the meeting with Ms. Wagner was on
December 2, 1999 - and I do not credit his testimony that it was on
December 1, 1999.

9. Mr. Johnson was the first to
arrive for the 1:00 p.m. meeting on December 2, 1999, and sat in
the outer office. A couple of minutes later, Ms. Wagner arrived
and sat down next to him and they chatted. (Tr. 29, 141) Ms. White
came in from the outside. At about the time she said, "Come on in"
to the small conference room, Mr. Johnson asked Ms. Wagner if she
knew what the meeting was about and Ms. Wagner had said, yes, it
was about his, Johnson's, misrepresenting himself to her, Wagner,
the day before. (Tr. 29, 141) As Mr. Johnson and Ms. Wagner
entered the conference room, Mr. Johnson was vociferously denying
that he had said he was representing Joan White. He insisted, ". .
. I was representing the Union." (Tr. 29) After they entered, Ms.
White shut the door (Tr. 30) and Ms. White said that she spoke
first and, ". . . I started out just like that, 'The purpose of
this meeting is to,' and before I could finish that statement he
turned away from me. He was facing me and she was facing me. He
turned to Tara and very angrily shouted to her, 'You are lying! You
are a liar! I did not say that.' Very angrily he attacked her
immediately. He went on for more than a minute he was just saying
to her, 'You're lying! I didn't say that. I did not tell you
that. I didn't say that.' ". . . His voice was escalating and I
was trying to calm him down." (Tr. 106) Ms. White said, "At this
time he was sitting, but he eventually stood up and he was going
over and over. He . . . said, 'I hate. I hate it here. I hate
this Agency, and I hate DCM, and I hate management, and I'm going
to get you . . . I'm going to get you. You're lying. You're just
lying.' . . . I said, 'Mike, clam down, Mike. Control yourself. I
just need to get to the bottom of this. Just calm down.' He was
escalating and he did that for a while." (Tr. 106-107) When asked
if Mr. Johnson responded to her requests that he quiet down, Ms.
White answered, ". . . Not immediately. Eventually, after a few
minutes Tara responded to him and she said, 'No, I'm not lying.
You're lying. You did say that. You said that Joan asked you to
ask me those questions and that's why I answered you.' . . . At
one time Tara escalated her voice too and she said, "No, no, no,
Mike. You're lying!' I motioned to her and said, 'Tara,' and she
calmed right down." (Tr. 107) When asked if Ms. Wagner got excited
after that, Ms. White said, ". . . No, never again. She sat back
and Mike, you know, continued to direct his anger at her." (Tr.
107) Ms. White said Mr. Johnson turned his wrath on her, ". . . He
turned back to me and said that he really hated this Agency and he
hated management, and that he was going to get us. He was going to
see to it that he got us. He said it cost him about $3,000 a case,
and he was going to get us, and he was going to sue me, and he was
going to sue management. He named several other people that he was
going to sue." (Tr. 108) Mr. Johnson did, in fact, sue Ms. White.
(Tr. 108) Mr. Johnson sued Ms. White in the Florida State Court in
Orange County for intentional infliction of emotional distress; and
the suit was removed to the United States District Court where it
was dismissed. (Tr. 120-121)

Ms. White said, ". . . It was
probably fifteen minutes or so, and he was still -- we had not
talked through the first issue of what he said to Tara, and what
actually transpired. Then he said, 'Rick Aman asked me to question
Tara.' I said, 'Okay, then I'll get Rick.'" (Tr. 113). Although
Ms. White first said that the only question she asked Mr. Johnson
was whether he had misrepresented himself (Tr. 119, 122), she later
admitted that she once asked him who complained to him that
initiated his investigation (Tr. 122). Ms. Wagner confirmed that
Ms. White had asked Mr. Johnson who had complained and Mr. Johnson
had said ". . . Rick Aman." (Tr. 153)

10. Ms. Wagner confirmed Ms.
White's testimony concerning Mr. Johnson's two seven minute
outbursts. (Tr. 142, 144, 148, 149, 153) She said Mr. Johnson was,
"A Rambling. He brought everything else into context that had
nothing to do with it. He was talking about the different schools
that he had gone to, and he was talking about how the Agency isn't
any good, and management isn't any good, and he was going to sue
this person, and sue that person. He just completely -- so you
just sit there and you just let him go because there was not (sic)
stopping him." (Tr. 148-149) Ms. Wagner, as had Ms. White, said
Mr. Johnson said, ". . . it only costs $3,000 to file a suit and
that he was going to file a suit against Joan, and he was going to
file it against Barb Turner and Peggy Gilmour and all this kind of
stuff. That he was going to file a suit against me, that's when I
then raised my voice and said, 'Go ahead and do it. You're going
to do what you want to do.' . . . That was the only time that I
raised my -- even at that point, Joan White calmed me back down and
then I never raised my voice again." (Tr. 142-143) Mr. Johnson
did, in fact sue Ms. Wagner for, "Defamation of character";
alleging she had "published" her comments by writing a memorandum
for record (Tr. 143. 144; Res. Exh. 1); and that the suit was
dismissed. (Tr. 155)

Ms. Wagner, like Ms. White (Tr.
117), said that Mr. Johnson said, ". . . I know the person who
didn't want me in your meeting"; that she, Wagner, had said, "Mike,
it wasn't one person. It was the consensus of the group that your
presence was not warranted." (Tr. 145) because of his
misrepresentation of what happened in those meetings. (Tr. 117,
146)

11. As noted above, when Mr.
Johnson said Mr. Aman told him to question Ms. Wagner, Ms. White
sent for Mr. Aman who came to the meeting a few minutes later. Mr.
Aman said, ". . . As far as what the meeting was about, I don't
know that I was given any clear indication. I had to suppose
everything. I mean, I had to ask that myself. I don't know what
that meeting was about to tell you the truth. . . ." (Tr. 96) I do
not credit this testimony for the reason that he conceded that Ms.
Wagner had told him at lunch that day, December 2, that she was
getting ready to go to a meeting, ". . . that afternoon after lunch
to discuss -- I guess to verify -- something she thought that Mike
had said . . . and also to ask whether Joan had asked Mike to go
ask her questions . . . ." (Tr. 70-71) Moreover, Mr. Aman stated
that, ". . . Tara had informed me prior to . . . about Mike. You
know, about the whole situation. . . ." (Tr. 93) Accordingly, I
find that Mr. Aman knew full well what the meeting was about when
he entered.

"Rick walked in and he and Mike --
I started to tell him -- to relay the story that Tara had come to
me and asked me questions, and said that Mike was representing me
and he wanted to question why she was being transferred to
TAG.

"Rick turned to Tara and said,
'Well maybe Tara, maybe you misunderstood Mike's questioning.
Maybe that's what happened.' By this time, Rick had walked into
the room and he was standing in the back and Mike was standing. He
was still standing at this time. He had gotten (sic) up one time
during his anger. He stood up in the room -- backed up and stood
up. So he was back with Rick in the back and they were talking
about several things, and they were relaying the conversation that
they had previously had with each other. So Rick again said to
Tara, 'Well Tara, you may have misunderstood what Mike was saying.'
Of course she said, 'No I did not misunderstand. He said that.'
Then they continued to talk and Tara looked and said, 'That has
nothing to do with me and I'm going to excuse myself.'

. . . ." (Tr. 113-114)

When asked about the discussion
about Mr. Johnson's alleged misrepresentation that he was acting on
the Deputy Commander's behalf, Mr. Aman replied,

"A There was some discussion along
that line between Tara and Mike and voices did get raised at that
point.

"Q Did anybody ask you anything
directly about that?

"A Not directly, but I jumped in a
couple times. I do know that.

"Q Did you have any direct
knowledge about that issue?

"A About -- as to whether
--

"Q As to whether Mr. Johnson
actually misrepresented himself or not?

"A No. I don't know anything about
that. To me, and while we were talking, it became obvious, I mean,
within a minute or two that there were -- barring what my
discussions with Joan and what I did, but when Tara and Mike
started talking and discussing things, it was very obvious that
there was some kind of mis-communication, or something was going on
that they were not in agreement on. It was a 'he said', 'she said'
type thing." (Tr. 76-77)

Mr. Aman steadfastly refused to
consider whether Mr. Johnson had, as Ms. Wagner asserted,
misrepresented himself to her as Ms. White's representative. Thus,
he told Ms. Wagner that it didn't matter whether Ms. White had
asked him to act for her, ". . . because his [Johnson's] authority
didn't flow from Joan. It flows from the statute -- from being a
labor representative. . . ." (Tr. 71); and he said that at the
meeting that, ". . . I tried to make it very clear in trying to
calm things down -- I had already talked to Tara about it and I
hadn't talked to Joan about it, but I made myself very clear that I
felt that Mike was performing a duty and a responsibility that he
needed to do. I didn't really understand what this was all about.
Why were we even in the room? . . ." (Tr. 77-78) Later, he said,
". . . As far as I was concerned, the meeting was about Mike
performing his duties as a representative. . . ." (Tr.
95)

I have no doubt that Mr. Aman
talked about his meeting with Ms. Turner and Ms. Stephenson,i.e., about the intended
transfer,etc.;
but I do not credit his testimony that this discussion came about
as the result of Ms. White's questioning. Rather, I credit Ms.
White's testimony, which I found wholly credible. Thus, as she
credibly testified, Mr. Aman, being well aware of what the meeting
was about, began by saying, "Well maybe Tara, maybe you
misunderstood Mike's questioning. Maybe that's what happened."
(Tr. 113) and Mr. Aman's statements poured forth as Mr. Johnson and
he relayed the conversation they previously had had. (Tr. 114)
Indeed, he concluded his testimony stating, ". . . That's all we
did talk about was the transfer and some of the things that Mike
did as a representative. There were no personal -- no work-related
issues discussed." (Tr. 96) The record suggests that Mr. Aman was
not forthcoming either with Ms. Turner or with Mr. Johnson and he
appears to have manipulated each. For example, he did not indicate
that he told Ms. Turner that she should notify Mr. Johnson rather
than himself, as steward,i.e., he said he told her about, ". .
. the requirement in the agreement is to notify the labor
representative for the activity fifteen days in advance of any
actual reorganization or transfers." (Tr. 66); he did not indicate
that he told Ms. Turner that selection of an ACO on the basis of
seniority was improper; but immediately after leaving Ms. Turner,
he told Ms. Stephenson that selection of the, ". . . lowest senior
person . . . would be incorrect . . ." (Tr. 67); he did not raise
any question with Ms. Turner, or with Ms. Stephenson, about Ms.
Wagner's selection; in his discussion with Mr. Johnson, he did not
tell Mr. Johnson that the TAG position had been "posted" on the
internet and volunteers had been solicited; he told Mr. Johnson
that management was supposed to notify him, ". . . They are not
supposed to come to me. . . ." (Tr. 69) but he had not indicated he
had told Ms. Turner that she should not have contacted him; he
implied to Mr. Johnson, if he did not tell him, as Mr. Johnson said
he did (Tr. 21), that Ms. Stephenson was going to be transferred to
assume Ms. Wagner's work, whereas he said Ms. Turner, ". . . wanted
to basically get some advice as far as what she should probably be
doing. . . ." (Tr. 65-66), which would indicate that, in accordance
with his advice, nothing had been done and that notice would be
given to the Union. As noted, Mr. Aman's attempt to change the
date of his luncheon meeting with Ms. Wagner was contrary to all
other evidence and testimony and was not credited. Accordingly for
all the reasons set forth above, I did not find Mr. Aman's
testimony convincing or credible concerning Ms. White's questioning
of him and, as previously stated, I credit the testimony of Ms.
White.

12. When Ms. Wagner told Mr.
Johnson, as they were preparing to enter the meeting room, in
response to his inquiry, that the meeting was about his, Johnson's,
misrepresentation that he was acting on behalf of the Deputy
Commander, Ms. White, in questioning her, Wagner, Mr. Johnson,
figuratively, "went ballistic". After Ms. White closed the door
and began to state the purpose of the meeting, Mr. Johnson
interrupted, calling Ms. Wagner a liar and began a long, rambling
tirade. As General Counsel states, ". . . Johnson openly admitted
that during the December 2, 1999 meeting that he lost his temper;
that he refused to calm down when White told him to do so; that he
interrupted White; that he called Wagner a liar . . ." (General
Counsel's Brief, n.3, p. 2); but I do not agree that Mr. Johnson
clearly and forthrightly related the events or that Mr. Johnson was
a credible witness. Mr. Johnson threatened to sue Ms. White, Ms.
Wagner, Ms. Gilmour and Ms. Turner and, while the record does not
show that he sued either Ms. Gilmour or Ms. Turner, the record
shows that he did, in fact, sue Ms. White and Ms.
Wagner.

I did not find Mr. Johnson a
credible witness. Initially, he talked about a team meeting
[i.e., team GOOB]
(Tr. 24), later he asserted, "Joan White also started to accuse me
of other people in the building not wanting me to represent them. .
. ." (Tr. 32) I do not find his testimony in this regard either
convincing or credible. Rather, as Ms. Wagner credibly testified,
Mr. Johnson said he knew the person who did not want him in GOOB
meetings and that she, Wagner, had responded, ""Mike, it wasn't one
person. It was the consensus of the group that your presence was
not warranted." (Tr. 145) because, ". . . they just didn't want him
there because of the way things have a tendency not to come out
(sic) they were said." (Tr. 146) I conclude that it was Ms.
Wagner, not Ms. White, who said the GOOB team did not want Mr.
Johnson at their meetings and that the reference to
"representation" were solely in regard to his presence at team
meetings. Mr. Johnson said, "There were other people who had filed
lawsuits against her in the building. . . ." (Tr. 34); but Ms.
White said, ". . . Not that I'm aware of. No. I've not been made
aware of any other lawsuits." (Tr. 120) Ms. White said that in
routine meetings with different parties present, Mr. Johnson's
recollection of events differed from everyone else (Tr. 111); that
Mr. Johnson would, ". . . say that we agreed on things that we did
not agree on. He's said things that were not true repeatedly.
He's said them with me singularly, and also with other members.
Other people such as Jannice (sic) [Szelak], who is the Union
President in several meetings has said, 'Mike, that's not true.
That didn't happen. . . .' (Tr. 118) Although Mr. Johnson denied
that he told Mr. Charles T. Straub, Manager, Operations Group, on
September 10, 1999, that when he goes into these rages he cannot
later recall what he said and did in those rages (Tr. 63) Mr.
Straub testified that Mr. Johnson, in September, 1999, ". . .
indicated to me that during his episodes when he becomes very angry
at work, he didn't always recall the things that he actually said.
. . . The fairest assessment would be, I believe, that it was a
general statement . . ., 'When I go into my outbursts or rages, I
don't always recall what I have said.'" (Tr. 164) I conclude,
therefore, that, as Ms. White and Ms. Wagner credibly testified,
Mr. Johnson engaged in two loud, angry, rambling monologues each
about seven minutes in length and interrupted only by Ms. Wagner's
denials of Mr. Johnson's assertion that she had lied, or that GOOB
team members wanted her to leave, and Ms. White's requests that he
calm down; however, toward the end of his second monologue, Ms.
White did ask him who told him to question Ms. Wagner and Mr.
Johnson responded, "Mr. Aman". I credit the testimony of Ms. White
and Ms. Wagner concerning what transpired at the December 2, 1999,
meeting.

13. Mr. Johnson said that Ms.
White asked, "Mike, are you trying to solicit work here, Union
business, by going to Tara Wagner?" (Tr. 30) Ms. Wagner testified
that she did not remember Ms. White asking Mr. Johnson why he had
approached Ms. Wagner (Tr. 146-147) and Ms. White emphatically
denied having made any such statement, saying, ". . . Oh, no. Not
at all. No. I never said that. Again, Tara came to me. I never
said that, no." (Tr. 119) I specifically do not credit Mr. Johnson
and I credit Ms. White's denial and conclude that no such statement
was made.

Mr. Johnson said, ". . . She
[White] mentioned about the issues of bogus -- 'We had no issues in
this building until you became the Union Steward. You're bringing
all these issues to us now.' . . . Bogus issues. That's what her
words were." (Tr. 32-33) Ms. Wagner testified that she recalled no
such statement being made by Ms. White (Tr. 145) and Ms. White
strongly denied any such statement, saying, in part, ". . . No. I
did not say that, and I would never say that, never. I would never
say that in a meeting, or with employees, or anything of that
nature. Not ever, no. I did not say that to him." (Tr. 116) I
did not find Mr. Johnson's testimony credible and I do not credit
his testimony but I credit Ms. White's denial and conclude that no
such statement was made.

Mr. Johnson said, ". . . Then Joan
White also started to accuse me of other people in the building not
wanting me to represent them. . . ." (Tr. 32) This has been
addressed previously and I did not find Mr. Johnson's testimony
convincing or credible. Thus, it appeared from his earlier
testimony that it was a team meeting [GOOB] about which Ms. Wagner
had spoken; that, as Ms. Wagner credibly testified, the members of
the team did not want Ms. Wagner present at their team meetings;
and that it had been Ms. Wagner who said, ". . . It was the
consensus of the group that your presence was not warranted." (Tr.
145) Ms. White denied that she made any such statement and
testified, ". . . No. I did not say that. In fact during the
exchange, one of the things that Mike had said to Tara was that he
was glad that she was going to TAG. He was happy. In fact, the
team was very happy that she was being transferred because nobody
wanted her on the team and they were happy that she was being
transferred. One of the things she said to him is, 'No. That's
not true. That's not true at all. In fact, I just got a call from
several of the teammates who have asked me to stay on the team. . .
. It's you Mike. It's you that the team doesn't want. They don't
want you to represent them. They don't want you to attend the
meetings.' Mike said, 'Well, who is it? I know one person who
doesn't want me to attend the meetings.' . . . Tara said, . . .
'it's all of the team. No one wants you because you always
misrepresent what happens in these meetings, and none of the team
wants you in the meeting. During that time they had said that they
don't want you to represent them.' Tara in an exchange with Mike
said that. I never said that." (Tr. 117) Accordingly, I do not
credit Mr. Johnson's testimony and I do credit Ms. White's
denial.

14. Ms. White stated that union
business was not discussed in the December 2 meeting (Tr. 108) and
that she did not ever raise union business (id.). Ms. White further said that
during the meeting she did not attack or provoke Mr. Johnson (Tr.
116); nor had Ms. Wagner (id.). Ms. Wagner, when asked if she
said anything to provoke Mr. Johnson into his outrage, replied, "A
He began the outrage before I ever had anything to say." (Tr. 144);
and when asked if Ms. White had provoked Mr. Johnson, she replied,
"A No. In actual fact, I was very impressed with the way Joan
remained and kept calm in the situation." (id.). Ms. Wagner also said she did
not recall any union issue. (Tr. 144-145)

Indeed, Mr. Johnson, reminiscent of
the old chestnut, "The Devil made me do it", blamed his conduct on
Union steward training, stating,

". . . I did go on to say that I
had gone to Union Steward training -- by a big mistake -- and they
said you could bang on the table, cuss, everything else. Don't
throw chairs and don't threaten people and I wish I would have
never heard that, because I wouldn't have acted the way I did. I
would have kept my composure . . . ." (Tr. 39-40)

"I. Did the Respondent violate
Section 7116(a)(1) and/or (2) by suspending Michael Johnson due to
protected activity he was engaged in on December 2,
1999?

"A. Were the actions that were the
basis of Johnson's suspension activity protected by the
Statute?

"B. If the activity described in
A, was protected activity, did Johnson's conduct constitute
flagrant misconduct so as to remove it from the protection of the
Statute?

"II. Did the Respondent violate
Section 7116(a)(1), through Joan White's statements during the
December 2, 1999 meeting?

. . . ." (Joint Exh. 1)

1. Investigation of alleged misrepresentation of
authority.

As noted, the meeting of December
2, 1999, was called to determine whether Mr. Johnson had
misrepresented his authority by telling Ms. Wagner he was
questioning her on behalf of the Deputy Commander, Ms. White, and
he would make a recommendation to Ms. White. As Ms. White very
credibly testified, when asked what she would have done if Mr.
Johnson had just said, "No, I didn't say that",

"A I think I would have asked him
to just explain it. Let's clear it up because that's what -- and
repeat what she thought she heard and just try to get to the bottom
of it.

"Again, this is something that is
very common. It's something that I do when employees come with
questions, or issues, or disagreements. We bring them in and try
to resolve it." (Tr. 119)

But before Ms. White completed her
statement as to the purpose of the meeting, Mr. Johnson interrupted
and "exploded" on two long, rambling, angry monologues. As I have
found, Ms. White did not question Mr. Johnson, indeed because of
his tirades she had no opportunity to ask him anything until near
the end of his second outburst when she did ask him who told him to
question Ms. Wagner.

Misrepresentation of authority
which occurs in the performance of protected activity is not,
itself, protected activity. Department of
the Air Force, Ogden Air Logistics Center, Hill Air Force Base,
Utah, 25 FLRA 342, 352 (1997); nor is
investigation of a misrepresentation of authority a violation of §
16(a)(1) of the Statute. Federal Bureau
of Prisons, Office of Internal Affairs, Washington, D.C. and
Federal Bureau of Prisons, Federal Correctional Institution
Englewood, Littleton, Colorado(hereinafter
"FBOP"), 53 FLRA
1500, 1509-1510 (1998)328525362
As I have found, the conduct of the investigation did not violate
the Statute,id.,
at 1501-1513.

2. The
disciplining of Mr. Johnson.

Mr. Johnson was not disciplined for
his conduct in questioning Ms. Wagner on December 1, 1999. To the
contrary, he was disciplined for: 1. "Contemptuous Behavior
Towards Constituted Authority" during the meeting on December 2,
1999; and 2. "Abusive or Offensive Language" during the December 2,
1999, meeting (Joint Exhs. 2, 3)

Mr. Johnson's conduct on December
2, 1999, occurred in a meeting called to investigate his alleged
misrepresentation of authority. As noted above, while
misrepresentation of authority is not a protected activity, it
occurred in the course of his performance of protected activity; he
was called to the meeting on December 2, 1999, to investigate his
alleged misrepresentation of authority; but he was the Chief
Steward and his conduct at the meeting on December 2, 1999,
occurred as Chief Steward and, as the Authority has held, when a
union official attends such a meeting as a union official, his
actions during that meeting are protected unless they constitute
flagrant misconduct (id., at 1518).

As noted, Mr. Johnson interrupted
Ms. White, embarked on two long, loud, rambling, angry monologues,
called Ms. Wagner a liar repeatedly, "bad-mouthed" Ms. White, the
agency, threatened to "get" Ms. White, threatened to sue Ms. White,
Ms. Wagner, Ms. Turner and Ms. Gilmour, refused to heed Ms. White's
repeated requests that he calm down, and used
profanity636003337,
although the profanity used was mild indeed. Mr. Johnson's tirades
lasted about fifteen minutes and was heard by employees working
outside the conference room. The National Labor Relations Board
had held that the threat to sue for libel, ". . . is of a harassing
nature. . . ."Clyde Taylor
Company, 127 NLRB 103, 108 (1960) even
though filing an action in Court is not,id., at 109;Consumer Product Safety Commission, 4
FLRA 803, 842-845 (1980). I am not aware of any Authority case
that has involved the threat of a suit by a Union official for
libel but there are other threats by labor organizations which the
Authority has found to interfere with employees' protected rights.
See, for example,National Army and Air
Technicians Association, Local 371, 7 FLRA
154, 161 (1981) (Spencer [Business Representative] made it
impossible for employee to refrain from joining the union "freely
and without fear of penalty or reprisal.");Overseas Education Association, 15
FLRA 488, 490 (1984) (Published remarks, ". . . constitute implied
threats which tend to have a coercive and restraining effect").
Mr. Johnson's outburst was impulsive, it occurred in Ms. White's
office which she was using as a conference room, but it was not
provoked by Respondent unless raising the allegation that Mr.
Johnson had misrepresented his authority can be considered
"provocation", which I do not. Mr. Johnson "exploded", usurped the
meeting and embarked on two long, angry, loud, rambling monologues.
Collective, his actions constituted flagrant misconduct.
Department of Defense, Defense Mapping
Agency Aerospace Center, St. Louis, Missouri, 17 FLRA 71 (1985).

Because Mr. Johnson's tirades on
December 2, 1999, including his threats, constituted flagrant
misconduct his actions were not protected and Respondent did not
violate §§ 16(a)(1) or (2) of the Statute by its Notice to Suspend,
dated March 2, 2000, or by its Notice of Decision to Suspend, dated
April 25, 2000, Mr. Johnson.

Further, having found that Ms.
White did not make any threatening or intimidating statement to Mr.
Johnson regarding his role as Chief Steward this allegation of the
Complaint is dismissed.

Having found that Respondent did
not violate the Statute, it is recommended that the Authority adopt
the following:

ORDER

The Complaint in Case No.
AT-CA-00310 be, and the same is hereby, dismissed.

For convenience of reference,
sections of the Statute hereinafter are, also, referred to without
inclusion of the initial, "71", of the statutory reference,i.e., Section 7116(a)(2)
will be referred to, simply, as, "§ 16(a)(2)".

Later, Mr. Aman testified, ". . . I
think it was maybe a week later" (Tr. 68) that he informed Mike
Johnson. Mr. Johnson testified that Mr. Aman met with him, ". . .
on the last day of November 1999, or on the morning of December
1st." (Tr.
21)

This case involved two very
distinct incidents, and charges, each of which involved the union
president. One resulted from the investigation of an alleged
assault by the union president after adjournment of a union
meeting. The other concerned a dispute between the union president
and an associate warden over the assignment of overtime, a
counseling meeting of the union president over her use of profane
and disrespectful language during the overtime incident, and the
union pres